Moya v. U.S. Eagle Federal Credit Union et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS by District Judge Robert C. Brack adopting 29 Report and Recommendations; The March 23, 2017 Order Dismissing Bankruptcy Case entered by the US Bankruptcy Court for the District of NM is affirmed. Bankruptcy appeal is dismissed with prejudice. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

CYNTHIA MOYA,
Appellant,
v.

CIV 17-0415 RB/KBM

U.S. EAGLE FEDERAL CREDIT UNION and
PHILIP J. MONTOYA, Trustee,
Appellees.

ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition (“PF&RD”) (Doc. 29), filed March 9, 2018, and on Petitioner’s
Notice of Failure Process, Response and Objections (“Objections”) to that PF&RD (Doc. 30),
filed March 19, 2018. Because they lack merit, the Court will overrule the objections and adopt
the PF&RD.
I.

Procedural History
Appellant filed for Chapter 13 bankruptcy on December 15, 2016. (Record on Appeal

“R.” at 9. 1) Her bankruptcy petition was converted from a Chapter 13 case to Chapter 7 case on
January 27, 2017. (See R. at 170–71.) A meeting of creditors pursuant to 11 U.S.C. § 341 (“§
341 meeting”) was scheduled for February 21, 2017. (R. at 172.) The Trustee explained that
Appellant appeared at the § 341 meeting on February 21, 2017, but “refused to be examined
under oath.” (R. at 240–42.) On February 21, 2017, the Trustee moved to dismiss Appellant’s
1

All “R.” citations are to the Record on Appeal, which has been reproduced in its entirety on the Docket at No. CIV
17-0415 RB/KBM, Docs. 4-17.

bankruptcy petition on the basis that she had failed to produce proof of identification and/or her
social security number, failed to provide tax returns and payment advices, and “[r]efus[ed] to be
sworn unless all other participants also took an oath.” (R. at 209.) Although both the Motion to
Dismiss and a Notice of Deadline for Filing Objections were provided to Appellant at her
mailing address, she filed no objections. (See R. at 220–25, 285.) Noting that Appellant had not
filed objections to the Trustee’s Motion to Dismiss, Judge Robert Jacobvitz granted the motion
on March 23, 2017. (R. at 285–86.) Appellant then filed this appeal. (R. at 50.) Magistrate Judge
Karen B. Molzen filed her PF&RD on March 9, 2018, in which she recommended that the Order
Dismissing Bankruptcy Case be affirmed and this bankruptcy appeal dismissed. (Doc. 29.)
II.

Legal Standard
When a party files timely-written objections to a magistrate judge’s recommendation, the

district court will conduct a de novo review of the portion objected to and “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1). De novo review requires the district judge to consider relevant evidence of
record and not merely to review the magistrate judge’s recommendations. In re Griego, 64 F.3d
580, 583–84 (10th Cir. 1995). “[A] party’s objections to the magistrate judge’s [PF&RD] must
be both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Prop., with Buildings, Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).
III.

Discussion
In the same fashion as the documents construed as her appeal brief (see Docs. 20, 21, 22,

23, 24, 26), Appellant makes a number of arguments in her Objections that are entirely tangential

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to her appeal of the March 23, 2017 Order Dismissing Bankruptcy Case. (See Doc. 30.) For
example, she asserts that the bankruptcy court abandoned its sovereign capacity by engaging in
commercial business, that she has a right to be heard by an Article III Court, that the Emergency
Banking Relief Act of 1933 is unconstitutional, and that the Bankruptcy Court is not part of the
judicial branch. The Order Dismissing Bankruptcy Case, however, does not take up any of these
arguments. (See R. at 209, 285.)
The only comprehensible argument advanced by Appellant’s Objections in which the
Court can discern a relationship to the Order Dismissing Bankruptcy Case is her contention that
she did not receive the Trustee’s Motion to Dismiss (Doc. 30 at 1, 6), contrary to the Certificate
of Notice, listing Appellant as a party who received notice of the motion by first class mail. (R.
at 220–23.) However, Appellant presents this argument for the first time in her Objections to the
PF&RD, and “issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426–27 (10th Cir.
1996).
Further, Appellant had the opportunity to address the Motion to Dismiss, as granted by
the Order of Dismissal, in this appeal. But the only argument she advanced that related to the
Motion to Dismiss was her contention that the Trustee unconstitutionally required her to “swear
under oath” at the § 341 meeting. (See, e.g., Doc. 20 at 2.) The Magistrate Judge addressed this
argument in the PF&RD, correctly finding that the dismissal of a bankruptcy case for a debtor’s
failure to provide testimony and other required information at a § 341 meeting is supported by
law. (See Doc. 29 at 5–7.) In her Objections, Appellant did not challenge this conclusion. As
such, the Court will adopt the Magistrate Judge’s recommendations. See 28 U.S.C. § 636(b)(1)

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(“A judge of the court shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” (emphasis
added)).
Finally, Appellant argues that the Court is penalizing her for the syntax, grammar, and
structure of her documents. As the Magistrate Judge noted in her PF&RD, when an appellant
proceeds pro se, the district court construes her pleadings liberally, holding them to a less
stringent standard than those filed by a party represented by counsel. See In re AkbariShahmirzadi, No. 14cv0982 JB/WPL, 2015 WL 8329208, at *1 (D.N.M. Nov. 25, 2015). In so
doing, the court makes “some allowance for a pro se litigant’s ‘failure to cite proper legal
authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction,
or [her] unfamiliarity with pleading requirements[.]’” Id. The Magistrate Judge did just this, but
properly declined to construct arguments or search the record for the pro se party. See id.
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1. The Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc. 29)
are ADOPTED;
2. The March 23, 2017 Order Dismissing Bankruptcy Case entered by the United States
Bankruptcy Court for the District of New Mexico in Case 16-13074-j7 is
AFFIRMED;
3. This bankruptcy appeal is DISMISSED with prejudice; and
4. A Final Order pursuant to Rule 58 of the Federal Rules of Civil Procedure will be
entered dismissing this action with prejudice.

ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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